Does the Charter apply to universities?

University administrators raised their eyebrows this week to news of the decision of the Court of Queen’s Bench of Alberta in Pridgen v. University of Calgary (CanLII), specifically the declaration of the Honourable Madam Justice Strekaf that the university is “not a Charter-free zone”.

The case (which was previously discussed in this post) involves separate statements by University of Calgary students Steven and Keith Pridgen – identical twins – on a facebook wall entitled “I NO Longer Fear Hell, I Took a Course with Aruna Mitra”. One comment mused about whether Professor Mitra “got lazy and gave everybody a 65″ while the other celebrated her departure and alleged she lied about being a “long-term professor”. Professor Mitra complained. The Interim Dean of the Faculty of Communication and Culture determined that the ten students who contributed to the wall, including the Pridgens, had committed non-academic misconduct and should be sanctioned. Keith Pridgen was advised that he was placed on probation for two years with certain other conditions and Steven Pridgen was mainly required that he write an unqualified letter of apology to Professor Mitra but no probation was applied. Letters from the Interim Dean maintain that the statements have caused “unwarranted professional and personal injury” to Professor Mitra and satisfy the criteria for non-academic misconduct. (The Statement of Principles of Conduct in the University Calendar defines non-academic misconduct to include “conduct which causes injury to a person”.)

The twins appealed the sanctions to the General Faculties Council’s Review Committee, where they were unsuccessful in quashing the Interim Dean’s decision and instead were given a six- and four-month probation respectively. They went a step further to the university’s Board of Governors, but they were rebuffed.

The first issue the court considered was whether the Charter applied to the disciplinary actions taken by the university. The Pridgens alleged that the university’s position infringed their rights under the Charter of freedom of expression and association. In contrast, the university argued that the Charter only applies to government institutions, which the university is not, despite being a creature of statute that performs a public service.

The essential source for determining whether the Charter applies to an entity is the Charter itself at section 32(1):

This Charter applies:

(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament…; and

(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province [which includes education].

But does the term “legislature and government” include universities? There have been several significant decisions of the Supreme Court of Canada since the advent of the Charter that interpret this provision. The initial guiding light came in RWDSU v. Dolphin Delivery Ltd. (CanLII), where the issue was whether secondary picketing in a labour dispute is protected as freedom of expression under the Charter. The most relevant point of the decision is that the court held that the Charter applies to “government action” and not to “private activity”. More importantly, the court implied that the Charter might apply to “creatures of Parliament and the Legislatures”.

Several years later, the Supreme Court of Canada released a series of decisions dealing with claims of Charter infringements by universities and hospitals. In McKinney v. University of Guelph (CanLII), the issue was whether mandatory retirement policies of several universities infringed the right to equality under the Charter. The claimants asserted that the Charter applied because the universities were creatures of statute intended to carry out a public service of providing education – i.e. they are essentially degree-granting companies incorporated by acts of provincial legislatures to complete a government objective. The court held that the Charter did not apply because the universities were not part of the government apparatus; they are legally autonomous and are not organs of government despite their dependence of government funds. The fact that the universities were incorporated by statute or carry out a government objective does not make them part of government. (A similar decision was rendered that year, but the court found there that the Charter in fact applied because of greater control by government in university affairs.)

Significantly, the Honourable Mr. Justice La Forest ruled that the origins or purpose of an entity are not alone sufficient to render it subject to the Charter, but rather courts should look to the degree of involvement or influence of government in a given activity that gives rise to a Charter claim to determine whether the Charter applies. Nonetheless, he did not shut the door to the Charter possibly applying to universities, but left in place a “control test”. The Honourable Madam Justice L’Heureux-Dube concluded in a separate decision that while certain functions of universities could be subject to the Charter, the activity of hiring and firing employees is not.

The court’s view was clarified in Eldridge v. British Columbia(CanLII), where deaf claimants argued that the failure of the province to provide sign language interpreters as an insured benefit under the Medical Services Plan violated the right to equality under the Charter. In defining the scope of the Charter’s application, the court (in a unanimous decision) approached the issue from the perspective that legislatures cannot escape their constitutional responsibilities under the Charter by delegating the implementation of their policies to otherwise private entities. As a result, for the Charter to apply either the private entity in its entirety must be considered to be “government” (i.e. based on the degree of governmental control exercised over it as an organization, it is clearly an organ of government) or the particular activity at issue must be considered to be “government” (i.e. the implementation of a certain government program) even though other activities of the private entity (e.g. hiring and firing employees) are not.

In McKinney, the court declared that the statutes of the universities did not show them to be organs of government, given the degree of autonomy they were granted to manage their affairs without government intervention. In Pridgen, the court reached the same conclusion about the University of Calgary, but noted that it is implementing a specific government policy:

The University is tasked with implementing a specific government policy for the provision of accessible post secondary education to the public in Alberta… The structure of the PSL Act [i.e. the statute governing the University of Calgary] reveals that in providing post‑secondary education, universities in Alberta carry out a specific government objective. Universities may be autonomous in their day‑to‑day operations… however, they act as the agent for the government in facilitating access to those post‑secondary education services contemplated in the PSL Act…

While the hiring and firing of employees by a university is non‑governmental in nature as seen in McKinney, the disciplining of students and the placement of restrictions on a student’s ability to exercise his or her freedom of expression in the context of pursuing an education at a public post‑secondary institution is altogether different. In order to successfully attend the University, students are compelled to adhere to its rules and policies. The regulation of freedom of expression as a condition of attendance cannot be properly classified as day‑to‑day operations.

I am satisfied that the University is not a Charter free zone. The Charter does apply in respect of the disciplinary proceedings taken by the University against the Applicants pursuant to the PSL Act. As in Eldridge, the source of the alleged Charter violation is the conduct of the University as opposed to the legislation itself. While the University is free to construct policies dealing with student behavior which may ultimately impact access to the post-secondary system, the manner in which those policies are interpreted and applied must not offend the rights provided under the Charter.

After concluding that the Charter applied, the court continued to address the content of the students’ expressions:

I do not regard this particular kind of expression as being of little value. Students should not be prevented from expressing critical opinions regarding the subject matter or quality of the teaching they are receiving. As an educational institution, the University should expect and encourage frank and critical discussion regarding the teaching ability of professors amongst students, even in instances where the comments exchanged are unfavourable. While certain of the comments made about Professor Mitra were not particularly gracious and might have reflected a lack of maturity, the Facebook Wall does have utility as a forum of discussion. The commentary may assist future students in course selection as well as provide feedback to existing students and perhaps reassurance that one is not alone in finding that they are having difficulty appreciating instruction in a particular course. If Professor Mitra was concerned that she was being defamed, then she could have brought a civil action.

Although this decision has surprised many who presumed that the Charter does not apply to university decisions – period – Strekaf J.’s take on certain university activities being subject to the Charter, but others not, has been raised before. In Blaber v. University of Victoria(CanLII), a computer science student used an email account supplied by the university to send a message to a listserve and addressed to a student politician accusing her of incompetence (or worse) and quoting a passage from the Book of Ezekiel involving “vengeance” (ala Pulp Fiction). The student politician complained and argued the email breached a university harrassment policy. The university responded on that basis by threatening to shut off the account. The student commenced a law suit and maintained that this threat from the university violated his Charter right to freedom of expression. The Honourable Mr. Justice Owen-Flood of the Supreme Court of British Columbia considered whether the Charter applies to the harrassment policy and referred to the following comment by Sopinka J. in McKinney:

[I] would not go so far as to say that none of the activities of a university are governmental in nature.

The court’s discussion on this issue in Blaber is obiter but it does highlight that McKinney should not be used to assert as a blanket rule that the Charter does not apply to universities, even those universities that pass a “control test”.

For this reason, the decision in Pridgen may turn some heads and serve as a landmark case but at the end of the day it simply fits within a neatly set out conceptual window created in McKinney, where the right facts finally came along to demonstrate what type of university activities of an autonomous institution will be subject to the Charter. (In my research for this post, I was unable to find a decision where a court found that the Charter applied to such a university.)

Ultimately, the court’s decision may reflect its view of the offensiveness of the university’s conduct. Apparently, University of Calgary officials have not yet indicated whether they will file for appeal. In any event, universities should take the time to evaluate their governing statutes and consider which areas of its affairs may be subject to the Charter and what changes, if any, should be adopted as a result.

The official policy of the York University Tribunal is to not communicate directly with representative counsel. This is official policy. They will ignore your lawyer and only communicate with you. Charter violation? Uh huh.

Noah Sarna, thank you for your blog. It helps my friend to navigate through the issues he has with university in Ontario. Lots of hurdles there, would you also know of any caselaws regarding denied access to education in the case of disability? Also any Ontario Education Law pointers?